Appeal No. 2006-0767
Application No. 09/962,258
Grignard reagent is present in a high concentration at the beginning of the reaction and
then steadily decreases (Brief, page 4). Appellants further argue that the concentration
of a reactant in the reaction mixture is “known to have a very strong influence” on the
course of the reaction (id.).
Appellants’ arguments are not persuasive. Appellants have not presented any
probative evidence that the concentrations of Grignard reagent markedly differ in the
prior art and claimed reactions, nor have appellants established that the concentration
of the Grignard reagent is “known” to have a “very strong” influence on the reaction.
Attorney argument generally cannot take the place of evidence. See In re Scarborough,
500 F.2d 560, 566, 182 USPQ 298, 302 (CCPA 1974). We note that the claims on
appeal do not specify that the concentration of the Grignard reagent is “always at a very
low level,” or even how the Grignard reagent is introduced. We also note that Lipshutz
clearly teaches that the Grignard reagent “was slowly added” (page 165, section 2.2).
Accordingly, we find no basis or support for appellants’ arguments concerning the
concentration of the Grignard reagent in the reaction mixture (see the Answer, page 4).
Appellants argue that one of ordinary skill in the art, following the teachings of
Lipshutz, would not have been motivated to modify Lipshutz, practice appellants’
invention, and expect the results appellants have obtained (Brief, page 5).
Appellants’ arguments are not persuasive. In reviewing the examiner’s
obviousness analysis, we first must correctly construe the claim language to define the
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